Citation Nr: 9822897
Decision Date: 07/29/98 Archive Date: 06/29/01
DOCKET NO. 96-29 161 ) DATE
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for essential
hypertension.
2. Entitlement to service connection for a disorder
manifested by swelling of the feet and a skin disorder of
the feet.
3. Entitlement to service connection for bilateral carpal
tunnel syndrome.
4. Entitlement to service connection for bone
disease/arthritis.
5. Entitlement to service connection for conjunctivitis.
6. Entitlement to service connection for diabetes.
7. Entitlement to secondary service connection for a cervical
spine condition.
8. Entitlement to secondary service connection for loss of
use of a creative organ.
9. Entitlement to secondary service connection for constant
vomiting.
10. Entitlement to an increased
evaluation for low back strain, currently rated as 10
percent disabling.
11. Entitlement to an increased
evaluation for hiatal hernia, currently rated as 30
percent disabling.
12. Entitlement to an effective
date earlier than January 10, 1997, for an increased
evaluation for service-connected hiatal hernia.
13. Entitlement to a total rating
for compensation purposes based on individual
unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The veteran had active service from October 1976 to January
1985. This case comes to the Board of Veterans' Appeals
(Board) from multiple RO rating decisions.
In a rating decision in February 1991, the RO denied service
connection for essential hypertension, a disorder manifested
by swelling of the feet, and a skin disorder of the feet, and
denied ratings in excess of 10 percent for low back strain
and hiatal hernia. The Board remanded the case in February
1993.
An October 1993 rating decision denied service connection for
bilateral carpal tunnel syndrome, diabetes, arthritis/bone
disease, and conjunctivitis.
An August 1995 rating decision denied service connection for
a cervical spine condition, claimed as secondary to his
service-connected low back strain, and a total rating for
compensation purposes based on individual unemployability.
A November 1996 rating decision denied service connection for
loss of use of a creative organ and constant vomiting,
claimed as secondary to service-connected low back strain and
hiatal hernia.
A March 1997 rating decision granted an increased, 30 percent
rating, rating for the veteran's service-connected hiatal
hernia, effective January 10, 1997. The veteran appeals for
a higher rating and an earlier effective date for an
increased rating for the hiatal hernia.
The issue of a total rating for compensation purposes based
on individual unemployability is the subject of the remand at
the end of the present Board decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to service
connection for essential hypertension, a disorder manifested
by swelling of the feet and a skin disorder of the feet,
bilateral carpal tunnel syndrome, arthritis/bone disease,
diabetes, and conjunctivitis as these conditions became
manifest in service. He asserts that his service-connected
low back strain caused his cervical spine condition, and that
his service-connected low back strain and hiatal hernia
caused loss of use of a creative organ and constant vomiting.
The veteran contends that his low back strain and hiatal
hernia are more disabling than currently evaluated. He also
maintains that the effective date of the award of the
increased rating for hiatal hernia should be earlier than
January 10, 1997.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not
presented well-grounded claims of service connection for
essential hypertension, a disorder manifested by swelling of
the feet and a skin disorder of the feet, bilateral carpal
tunnel syndrome, arthritis/bone disease, diabetes, and
conjunctivitis; and he has not presented well-grounded claims
of secondary service connection for a cervical spine
condition, loss of use of a creative organ, and constant
vomiting. In addition, it is the decision of the Board that
the preponderance of the evidence is against the claim for an
increased rating for low back strain; and that a disability
rating of 60 percent for the veteran's service-connected
hiatal hernia is warranted. Further, it is the decision of
the Board that the veteran is not entitled to an effective
date prior to January 10, 1997, for an increased rating for
hiatal hernia.
FINDINGS OF FACT
1. The veteran's has not submitted competent evidence to show
plausible claims of service connection for essential
hypertension, a disorder manifested by swelling of the
feet and a skin disorder of the feet, bilateral carpal
tunnel syndrome, arthritis/bone disease, diabetes, and
conjunctivitis; and he has not submitted competent
evidence to show plausible claims of secondary service
connection for a cervical spine condition, loss of use of
a creative organ, and constant vomiting.
2. The veteran's service-connected low back strain is
manifested by no more than slight limitation of motion and
characteristic pain on motion.
3. The veteran's hiatal hernia is productive of severe
impairment of health.
4. On April 20, 1990, the veteran claimed service connection
for hiatal hernia; the RO granted service connection and a
10 percent rating for hiatal hernia effective from that
date, and it increased the rating to 30 percent effective
January 10, 1997. (The Board has increased the rating to
60 percent in the present decision.) An increase in the
level of disability from the hiatal hernia, above the 10
percent level, is first ascertainable as of January 10,
1997.
CONCLUSIONS OF LAW
1. The veteran has not submitted well-grounded claims for
service connection for essential hypertension, a disorder
manifested by swelling of the feet and a skin disorder of
the feet, bilateral carpal tunnel syndrome, arthritis/bone
disease, diabetes, and conjunctivitis; and he has not
submitted well-grounded claims for secondary service
connection for a cervical spine condition, loss of use of
a creative organ, and constant vomiting. 38 U.S.C.A.
§ 5107(a) (West 1991).
2. The criteria for an evaluation greater than 10 percent for
low back strain are not met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295
(1997).
3. The criteria for a 60 percent rating for hiatal hernia
have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 4.7, 4.114, Diagnostic Code 7346 (1997).
4. The criteria for an effective date earlier than January
10, 1997, for increased compensation for a service-
connected hiatal hernia have not been met. 38 U.S.C.A.
§ 5110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.400 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran served on active duty with the Army from October
1976 to January 1985.
Service medical records reveal that an examination was
conducted in April 1977 due to lost medical records. The
examination was negative. The veteran complained of
intermittent low back pain and eye trouble.
The veteran complained of pain on the right side which
occasionally radiated to the right shoulder after eating
greasy foods in June 1977. Urine glucose tests in June and
August 1977 were negative. In July 1977 the veteran
complained of photophobia. Ophthalmoscopy was negative.
Glasses were prescribed. Abdominal pain of unknown etiology
was diagnosed. He again complained of abdominal pain in
August 1977. The veteran's blood pressure was recorded at
120/90 in September 1977. In September 1977, the veteran
presented with cystic acne, swollen and erythematous eyelids,
and periorbital edema. Later that month, the veteran's
periorbital edema was noted to have been resolving. An
October 1977 upper gastrointestinal series revealed a small
hiatal hernia. Cascading stomach was diagnosed.
The veteran underwent three days of blood pressure testing in
April 1978 which revealed normal blood pressure readings. In
May 1978 the veteran presented with inflammatory cystic acne
of the face and right periorbital edema. A cyst under the
eye was drained. In June 1978 the veteran complained of
increasing heartburn. In October 1978 the veteran complained
of low back pain after lifting weights. Pain on palpation
and decreased range of motion was noted. Muscle strain was
diagnosed. Later that month, the veteran still complained of
pain in the lumbosacral spine without radiation. A 72-hour
physical profile was issued. In October 1978 a urine glucose
test was negative.
In April 1979 the veteran presented with pain and swelling in
the left hand and wrist of two weeks duration. He denied
either joint swelling or trauma. A positive family history
of arthritis was noted. Pain and swelling of the wrist was
diagnosed. In May 1979 the veteran complained of low back
pain when running. Tenderness of the lumbosacral spine was
noted. Straight leg raising was positive. An X-ray
evaluation was negative. Low back pain was diagnosed. The
veteran was issued a physical profile.
A periodic examination, including a urine glucose test, in
February 1982 was normal. In response to the question of
whether the veteran had or ever had hypertension he
concurrently answered "yes" and "don't know." In May 1982
the veteran complained of a bump between his eyes, and a
facial abscess was diagnosed. In July 1982 the veteran
complained of low back and neck pain of three days duration.
He also gave a history of an eight-foot fall in 1976 on an
obstacle course. Decreased lumbar range of motion and pain
to palpation was noted. Post-traumatic pain and lumbosacral
strain was diagnosed. In September 1982 a urine glucose test
was negative.
His blood pressure was 128/92 in August 1983. A blood
glucose test was normal in March 1984.
In January 1985 the veteran underwent an optometry check up
examination. He stated he lost his glasses and his distance
visual acuity and night visual acuity were blurry, and that
night visual acuity was decreased. He stated he never had
eye surgery or diabetes. He also stated in response to
whether he or any member of his family had hypertension, that
his father had the condition. Except for decreased visual
acuity, the remainder of the examination was normal. He was
given a prescription for glasses. The veteran declined a
service discharge examination.
Post-service medical records showed that the veteran's blood
pressure was 150/64 in December 1989. That month the veteran
complained of inability to obtain an erection for the past
five to six months, and erectile impotence was diagnosed.
In May 1990 the veteran complained of frontal headaches,
blurry vision, decreased visual acuity and eye pain. He
stated he had two or three eye operations in service.
A VA examination was conducted in July 1990. The veteran
complained of swelling between the eyes. A past history of
chronic iritis was given. Examination noted that the
external and internal structures of the eyes, and optic nerve
were normal. Decreased visual acuity and decreased visual
fields were diagnosed. The veteran also related a past
history of falling off a truck and striking his low back on a
tree stump. He stated he was hospitalized for one week, had
one week of light duty, and was then returned to full duty.
He reported intermittent episodes of low back pain in
service, the last episode was in 1984. He worked as a truck
driver but had to stop after about 100 miles of driving to
rest his back. Examination revealed a lumbar range of motion
of 70 degrees flexion, 20 degrees extension, 25 degrees
lateral bending bilaterally, and 25 degrees rotation
bilaterally. The veteran stated that low back pain and
stiffness limit his range of motion. There was no
paravertebral muscle spasm, and the lower extremity deep
tendon reflexes were normal. An X-ray evaluation of the
lumbar spine was negative. Chronic lumbosacral strain with
pain and stiffness of the low back aggravated by work as a
truck driver, and extreme obesity, were diagnosed. He also
stated his blood pressure was occasionally elevated but was
currently normal. Examination noted the veteran's
cardiovascular system was normal and noted blood pressure
readings of 159/88, sitting, and 150/78, standing.
A September 1990 rating decision, in part, granted service
connection for chronic low back strain, and assigned a 10
percent rating; and granted service connection for hiatal
hernia, and assigned a zero percent rating.
In September 1990 the veteran complained of nausea and
vomiting. He denied recent blood loss, melena, and
hematemesis. Impressions of microcytic anemia, obesity,
history of hiatal hernia and history of hypertension were
given. An upper gastrointestinal series noted that the
veteran had a large hiatal hernia with mild reflux of barium
into the esophagus. In October 1990 the veteran complained
of low back pain with radiation to both upper posterior legs.
The examiner stated the veteran's weight of 289 pounds was a
major problem. In November 1990 the veteran complained of
swelling of the feet and cracked skin on the sides of his
feet of seven years duration. Hyperkeratosis of the edge of
his heels with pain and cracking was noted.
A VA examination was conducted in January 1991. The range of
motion of the lumbar spine was 70 degrees flexion, 20 degrees
extension, 20 degrees lateral bending bilaterally, and 20
degrees rotation bilaterally. Straight leg raising was
accomplished to 60 degrees on the right and 40 degrees on the
left. There was no paravertebral muscle spasm, and the lower
extremity deep tendon reflexes were normal. On X-ray
evaluation of the lumbar spine, no abnormality was noted, on
anteroposterior view, a good portion of the spine was hidden
by barium, but the examiner doubted that any abnormalities
were present. Unsatisfactory X-ray examination was noted.
An impression of chronic low back strain, having slightly
more low back pain than at the time of the previous (July
1990) examination was given. The veteran gave a history of
having been found to have had borderline high blood pressure
or high blood pressure on several occasions in service, but
was never treated for the condition. He reportedly was
recently given medication and a diet at the clinic for the
condition. He denied any lower gastrointestinal tract
problems, loss of blood either by vomiting or through stools,
or black or tarry stools. Review of the body systems, except
for morbid exogenous obesity, was negative. An upper
gastrointestinal series noted a large hiatal hernia. No
reflux or reflux esophagitis was noted. Diagnoses were a
large hiatal hernia by X-ray; labile blood pressure, by
history, controlled by a low sodium diet and Lasix at this
time; exogenous obesity; and a blood glucose of 142.
A February 1991 rating decision, in part, granted an
increased 10 percent rating for hiatal hernia, effective to
the date of the original claim in April 1990; and denied
service connection for hypertension, and swelling of the feet
and hyperkeratosis of the feet.
In March 1991 the veteran stated that the Lasix he took for
his hypertension caused impotency. In March 1991 the veteran
complained of burning in his chest and right arm. He stated
his right arm pain ended 20 minutes after taking an antacid.
Hiatal hernia was diagnosed. In March 1991 the veteran
complained of neck and back pain from a motor vehicle
accident which occurred that month. He denied he had
diabetes mellitus. The radiologist read the veteran's
cervical spine and other X-rays as normal. Cervical and
lumbar strain with no evidence of fracture or degeneration,
hiatal hernia, and obesity were diagnosed. An April 1991 VA
physical therapy note indicated the veteran no longer had
back pain after eight physical therapy treatments. He stated
he only feels a slight twinge of pain when he lifts his 30
pound daughter improperly.
In May 1991 anemia and questionable glucose intolerance were
noted. His hypertension was noted to be under control. VA
progress notes indicate the veteran was seen for obesity,
hiatal hernia, glucose intolerance, and chronic neck pain in
July 1991. In a July 1991 letter, Carl H. Hines stated that
the veteran was unemployable as a truck driver due to his
hypertension, lumbosacral sprain, gastroesophageal reflux
disease, hiatal hernia and morbid obesity.
A hearing before a hearing officer at the RO was conducted in
August 1991. The veteran testified he was treated for
hypertension in 1977 and 1978 in service with medication and
diet. He stated he was transferred to a supply outfit
because running would make cause dizziness, high blood
pressure, and chest pain. He stated he had an examination
for truck-driving school immediately after discharge which
found hypertension but the school only keeps examinations for
two years and the examination was not available. The veteran
also stated he had been receiving free blood pressure checks
since discharge from service and the medical personnel would
enter this information on a card and give the card to the
veteran. The veteran stated he would send the records of
these blood pressure measurements to the RO. He stated he
only recently began taking blood pressure medical on a
regular basis. The veteran also stated he has had problems
with burning cracking skin and blisters with his feet and
heels since basic training. He stated he has put the same
type of cream on them since service. Regarding his low back,
the veteran asserted he had spasms about at least two or
three times a week with radiation into the legs. Regarding
his hiatal hernia, he testified he experienced pain,
heartburn after meals, and vomiting twice a week.
In October 1991 a past history of anemia was noted, and the
physician lowered the veteran's iron sulfate dosage. His
non-insulin-dependent diabetes mellitus was noted to be
stable.
In November 1991 the veteran stated he was treated for
arthritis in service in 1984.
In December 1991 the veteran gave a history of right hand
swelling and pain of four days duration. He stated he had
arthritis of the right hand and was taking arthritis
medication. An X-ray evaluation revealed no bony erosions or
fracture of the right hand, and the joint spaces were intact.
A diagnosis of probable carpal tunnel syndrome was given.
In January 1992 the veteran complained of swelling and pain
in both hands. He also complained of back, left leg and left
ankle pain. Possible bilateral carpal tunnel syndrome and
history of arthritis was given. A February 1992
electromyogram found a neuropathy of the medial nerve at the
wrist region of the carpal tunnel. In March 1992 the veteran
was diagnosed with insulin-dependent diabetes mellitus. A
May 1992 VA podiatric progress note indicated the veteran's
burning and cracking of the skin and calluses of the feet had
decreased with the use of medication. Diabetic neuropathy
was diagnosed. A May 1992 progress note indicated a
diagnosis of non-insulin-dependent diabetes mellitus.
Another May 1992 progress note indicated conservative
treatment had failed to cure the veteran's carpal tunnel
syndrome, and in June 1992 a right carpal tunnel release was
performed. In July 1992 the veteran complained of neck pain
with radiation down both arms of two days duration. In
August 1992 the veteran complained of low back pain,
reoccurring pain and cramping in the right hand traveling to
the neck, and the left hand was "beginning to do
something." He also stated his blood pressure had been
elevated. Slight tenderness over the lumbosacral musculature
was noted. Chronic lumbosacral strain partially secondary to
obesity, carpal tunnel syndrome, and hypertension were
diagnosed. In October 1992 the veteran complained of redness
of both eyes resulting, at times, in blurry vision since he
had surgery on the bridge of his nose in 1980. Recurrent
bilateral conjunctivitis was diagnosed.
A medical report dated in November 1992 from Fletcher S.
Sutton, M.D., is of record. The physician stated the veteran
would not move his spine hardly at all due to complaints of
discomfort. However, on watching the veteran move on and off
the examining table, walking and standing, the physician
noted that the veteran had no splinting of any body
movements. No tenderness over the back was noted. The
veteran complained of pain during several orthopedic tests
but did not complain of radiation into the legs. Manual
muscle testing of the lower extremities noted no asymmetrical
weaknesses. Deep tendon reflexes were 1+. Dry, scaly and
cracked skin, and callous formation were noted on the heels.
An X-ray evaluation of the lumbar spine was negative. The
following diagnoses were given: muscular ligamentous back
pain, no objective evidence of radicular component; callus
formation, both feet mild; postoperative carpal tunnel
syndrome; symptomatic hiatal hernia as verified by X-ray
studies in 1991; endogenous obesity; severe hypertension; and
non-insulin-dependent diabetes mellitus as verified by the
record.
In February 1993 the veteran sought treatment for burning in
his chest due to his hiatal hernia, and bilateral carpal
tunnel syndrome.
A VA stomach examination was conducted in May 1993. The
examiner noted that the veteran was not anemic. The veteran
reported he occasionally spit up food, acid or bile. His
last significant vomiting spells were two years ago. No
hematemesis, melena, or gastrointestinal bleeding was
reported. The veteran complained of daily, mostly at night,
distress in the form of a burning or full sensation in the
epigastric area and beneath the sternum. A large hiatal
hernia with some esophageal reflux and exogenous obesity was
diagnosed. A VA esophagus examination was also conducted in
May 1993. The examiner noted that the veteran had never been
anemic. It was also noted that the veteran used to vomit
quite frequently, however, there had been no recent vomiting
or other known motility impairment. Hiatal hernia with
esophageal reflux, moderate to moderately severe was
diagnosed. A May 1993 hypertension examination noted that
the veteran stated he was checked for high blood pressure in
service on several occasions. The examiner stated he
reviewed the service medical records and did not find any
evidence that he had hypertension during service but at that
time the veteran was undergoing some remarkable episodes of
weight gain and loss. He also stated the veteran had no
history of endocrine disease other than non-insulin-dependent
diabetes mellitus. Vascular hypertension, most likely
secondary to his exogenous obesity, and non-insulin-dependent
diabetes mellitus were diagnosed. The examiner found no
evidence of renovascular or hormonal hypertension.
A May 1993 spine examination was conducted. The examiner
reviewed the veteran's service medical records and could not
find any episode of acute spinal injury. He noted that most
of the veteran's symptoms began following a motor vehicle
accident in 1991. The veteran complained of back and neck
pain. No radiation down the lower extremities was noted.
The examiner stated that the veteran's back pain did not
follow any type of neurological pattern and that the spinal
X-rays of record did not show any abnormality of the cervical
or lumbar spine. No tenderness, muscle spasm or trigger
points of the musculature of the cervical spine was found.
The thoracolumbar spine showed no deformity or postural
abnormality. The musculature was symmetrical. The range of
motion of the lumbar spine was 45 degrees flexion, 30 degrees
extension, 35 degrees lateral bending bilaterally, and 35
degrees rotation bilaterally. He did not show any evidence
of pain on motion. According to the examiner, the veteran
did not attempt to flex more than 45 degrees because he said
it would hurt. Deep tendon reflexes were 1+ and equal. The
veteran complained of minor paresthesias of the feet, but no
sensory changes were found on examination, and the feet were
found to have been normal. Mild, chronic lumbar strain was
diagnosed.
In August 1993 the veteran was involved in a motor vehicle
accident. He struck his head and complained of severe
headaches, rib and low back pain. In August 1993 the veteran
was diagnosed with probable bilateral cubital tunnel
syndrome. In October 1993 the veteran complained of right
neck and trapezius pain due to the recent accident.
An October 1993 rating decision denied, in part, service
connection for a disorder manifested by swelling of the feet
and a skin disorder of the feet, bilateral carpal tunnel
syndrome, arthritis/bone disease, diabetes, and
conjunctivitis.
In November 1993 the veteran complained of burning in his
stomach, headaches dizziness, frequent vomiting (3 to 4 times
per day) and occasional black stools and low-grade fever.
Hiatal hernia, non-insulin-dependent diabetes mellitus and
obesity were diagnosed. In November 1993 the veteran
complained of decreased visual acuity at night. Diabetes
mellitus with background diabetic retinopathy, and transient
episodes of early cataracts, probably related to glycemic
control were diagnosed. In December 1993 he complained of
low back pain and leg pain, which increased after a motor
vehicle accident five months ago. He related a history of
degenerative joint disease. He also complained of increasing
problems with his hiatal hernia. Back pain and history of
degenerative joint disease were diagnosed.
In January 1994 the veteran was diagnosed with degenerative
arthritis and degenerative disc disease of the cervical spine
with probable nerve root pressure at the C7 level. In June
1994 the veteran stated that Norvasc, one of the medications
he took for hypertension, makes him impotent.
A VA peripheral nerves examination was conducted in March
1995. The examiner stated that peripheral vascular disease
may have been present; and cervical disc disease may be
causing some of the veteran's numbness in the hands and
forearms, but carpal tunnel syndrome was another possibility.
The complaints of numbness in the legs and lower lumbar area,
according to the physician, may be secondary to disc problems
in the lower lumbar area; and the veteran's long history of
sitting and driving and his obesity may be causing part of
his disc disease in the lumbar area. A March 1995 VA spine
examination revealed that the veteran "probably" has
problems with arthritis and bone spurring. It was also noted
that the veteran's weight was probably a factor contributing
to his low back problems. Degenerative bone and disc disease
of the cervical spine, and lumbar spine, normal on X-ray,
were diagnosed.
An August 1995 rating decision denied service connection for
a cervical spine condition, claimed as secondary to the
veteran's service-connected low back strain, and a total
rating for compensation purposes based on individual
unemployability.
In October 1995 the veteran complained of pain in his low
back which radiated down his lower extremities. He also
complained of pain and swelling in both shoulders and arms;
and numbness in both upper extremities. Musculoskeletal
pain, diabetes mellitus, hypertension, and obesity were
diagnosed.
In June 1996 the veteran underwent right shoulder
arthroscopy.
In October 1996 the veteran stated that antacids did not
relieve his gastrointestinal reflux. An upper
gastrointestinal series was conducted in October 1996.
Considerable gastric reflux was noted on a water siphonage
test. A very large hiatal hernia encompassing one half of
the stomach above the diaphragm was found.
A November 1996 rating decision denied service connection for
loss of use of a creative organ, claimed as secondary to his
service-connected low back strain; and constant vomiting,
claimed as secondary to his service-connected low back
strain.
A VA examination was conducted on January 10, 1997. The
examiner noted that the veteran had a large hiatal hernia
with considerable gastroesophageal reflux. He opined that it
was unclear whether the veteran's chest and shoulder pain
were due to his hiatal hernia or cervical and shoulder
conditions, but in light of the veteran's frequency of
vomiting, and reflux, most of the chest pain was due to the
hiatal hernia. The examiner stated the veteran was not
anemic, had daily vomiting, and reported no history of
hematemesis or melena. The examiner stated that the
veteran's gastrointestinal symptomatology was almost
continuous. Chronic hiatal hernia and gastroesophageal
reflux disease, resistant to medication; non-insulin-
dependent diabetes mellitus; exogenous obesity; and
hypertension, adequately controlled on medication were
diagnosed.
Esophageal and stomach biopsies were performed in February
1997. The clinical history noted the veteran had
gastroesophageal reflux disease and anemia. Esophageal
biopsy indicated active reflux esophagitis. Stomach biopsy
indicated mild acute inflammation and findings suggestive of
Helicobacter gastritis. The stomach biopsy was too
superficial for a complete assessment of the gastric mucosa,
and the presence or absence of atrophy could not be
evaluated.
A March 1997 rating decision granted an increased, 30
percent, rating for the veteran's service-connected hiatal
hernia, effective January 10, 1997, the date of the VA
examination.
II. Legal Analysis
A. Service Connection Claims
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service incurrence
for certain chronic diseases, including arthritis,
hypertension, and diabetes mellitus, may be presumed if they
become manifest to a compensable degree within one year
following separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Under 38 C.F.R. § 3.310(a), secondary service connection may
be granted when a disability is proximately due to or the
result of a service-connected disease or injury. Additional
disability resulting from the aggravation of a non-service-
connected condition by a service-connected condition may also
be compensated under 38 C.F.R. § 3.310(a). Allen v. Brown, 7
Vet.App. 439 (1995).
The requirements of a well-grounded claim are summarized in
Caluza v. Brown, 7 Vet.App. 498 (1995). There must be
competent evidence of a current disability (a medical
diagnosis). Brammer v. Derwinski, 3 Vet. App. 223 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141 (1992). There must
also be competent evidence showing incurrence or aggravation
of a disease or injury in service (medical evidence or, in
some circumstances, lay evidence). Layno v. Brown, 6 Vet.
App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24
(1991). There must also be a nexus between the in-service
injury or disease and the current disability (medical
evidence). Lathan v. Brown, 7 Vet. App. 359 (1995);
Grottveit v. Brown, 5 Vet.App. 91 (1993). In addition, when
a veteran contends that his service-connected disability has
caused a new disability, he must submit competent medical
evidence of a causal relationship between the two
disabilities to establish a well-grounded claim. Jones v.
Brown, 7 Vet.App. 134 (1994).
1. Direct Service Connection Claims
The threshold question regarding the claims for service
connection for hypertension, a disorder manifested by
swelling of the feet and a skin disorder of the feet,
bilateral carpal tunnel syndrome, arthritis/bone disease,
diabetes, and conjunctivitis is whether the veteran has met
his initial burden of submitting evidence to show that his
claims are well grounded, meaning plausible. 38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he
has not done so, there is no VA duty to assist him in
developing facts pertinent to his claims, and the claims must
be denied. Id.
Regarding the veteran's hypertension, a review of the service
medical records shows that the veteran's blood pressure was
recorded at 120/90 in September 1977, that he underwent three
days of blood pressure testing in April 1978 which revealed
normal blood pressure readings, and that his blood pressure
was 128/92 in August 1983. Despite the isolated borderline
elevated blood pressure readings in service, the veteran's
blood pressure was found to be normal on many other occasions
in service. He was discharged from service in January 1985;
hypertension was not manifest within the year thereafter, and
there is no evidence of hypertension for several years after
active duty. A private medical report shows that the
veteran's blood pressure was 150/64 in 1989 and VA medical
reports show elevated blood pressure readings in 1990 and
1991.
As noted, one requirement for a well-grounded claim for
service connection is competent medical evidence showing
causality between service and the current disability.
Caluza, supra; Grottveit, supra. The veteran has submitted
no such competent medical evidence to link his hypertension
to service. As a layman, the veteran has no competence to
give a medical opinion on diagnosis or etiology of a
condition, and his statements (to the effect that his current
conditions are due to service) do not constitute competent
evidence of causality for a well-grounded claim. Id.
Similarly, many of the recent medical records recite his
self-reported history of hypertension beginning in service,
but such mere transcriptions of a lay history in medical
records are not competent medical evidence of causality for a
well-grounded claim. LeShore v. Brown, 8 Vet App 406 (1995).
In addition, the examiner who performed the May 1993
hypertension examination reviewed the service medical records
and did not find any evidence that the veteran had
hypertension during service.
Service medical records are silent for any complaints or
treatment of a disorder manifested by swelling of the feet
and a skin disorder of the feet, bilateral carpal tunnel
syndrome, arthritis/bone disease, diabetes, and
conjunctivitis. A review of the post-service medical
evidence shows that these conditions were all noted no
earlier than four year after service and the veteran has
since had treatment for the conditions. Arthritis and
diabetes were not manifest within the year after service. As
noted, one requirement for a well-grounded claim for service
connection is competent medical evidence showing causality
between service and the current disability. Caluza, supra;
Grottveit, supra. The veteran has submitted no such
competent medical evidence to link his current conditions to
service. As a layman, the veteran has no competence to give
a medical opinion on diagnosis or etiology of a condition,
and his statements (to the effect that his current conditions
are due to service) do not constitute competent evidence of
causality for a well-grounded claim. Id. Similarly, some of
the recent medical records recite his self-reported history
of the problems beginning in service, but such mere
transcriptions of a lay history in medical records are not
competent medical evidence of causality for a well-grounded
claim. LeShore, supra.
As there is no competent medical evidence of causality
between the veteran's period of service and the claimed
disorders, the claims for service connection are implausible
and they must be denied as not well grounded.
2. Secondary Service Connection Claims
The veteran claims secondary service connection for a
cervical spine condition, secondary to his service-connected
low back strain, and he claims secondary service connection
for loss of use of a creative organ and constant vomiting,
secondary to his service-connected low back strain or hiatal
hernia. These claims raise the threshold question of whether
he has met his burden of submitting evidence to show that his
claims are well grounded, meaning plausible; if he has not
done so, there is no VA duty to assist him in developing the
claims, and the claims must be denied. 38 U.S.C.A.
§ 5107(a); Murphy, supra.
The claimed conditions were not shown until years after the
veteran's active duty. A review of the evidence indicates
that there is no medical opinion that his cervical spine
condition, loss of use of a creative organ, and a distinct
disorder manifested by constant vomiting were caused or
aggravated by his established service-connected conditions.
Regarding the veteran's cervical spine condition, the Board
notes that the veteran complained of a chronic neck disorder
after post-service motor vehicle accidents. The Board notes
that the veteran's vomiting will be considered as a symptom
of his service-connected hiatal hernia for the purposes of
obtaining an increased rating, as discussed later in this
decision, but there is no separate and distinct vomiting
disorder for which secondary service connection could be
granted.
As a layman, the veteran has no competence to give a medical
opinion to the effect that his cervical spine condition, loss
of use of a creative organ, and a distinct disorder
manifested by vomiting were caused or aggravated by his
service-connected conditions. Such statements do not
constitute competent evidence of causality for a well-
grounded claim for secondary service connection. Jones,
supra; Grottveit, supra.
As there is no competent medical evidence of causality
between the cervical spine condition, loss of use of a
creative organ, and a separate disorder manifested by
constant vomiting, and his service-connected conditions, the
claims for secondary service connection are implausible and
must be denied as not well grounded.
B. Increased Rating Claims
The increased rating claims are well grounded, meaning
plausible; the evidence has been properly developed, and
there is no further VA duty to assist the veteran with these
claims. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2
Vet.App. 629 (1992).
The evaluation assigned for a service-connected disability is
established by comparing the manifestations of the condition
with the criteria found in the VA's Schedule for Rating
Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When
there is a question as to which of two evaluations should be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The history of the veteran's low back strain and hiatal
hernia have been reviewed. However, where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Thus, the more recent
medical records are generally the most relevant to an
increased rating claim. Francisco v. Brown, 7 Vet.App. 55
(1994).
1. Low Back Strain
Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5295, a 10
percent evaluation is warranted for lumbosacral strain where
there is characteristic pain on motion. A 20 percent
evaluation is to be assigned for lumbosacral strain with
muscle spasm on extreme forward bending, and unilateral loss
of lateral spine motion in the standing position. Neither
muscle spasm on extreme forward bending nor unilateral loss
of lateral spine motion have been observed by medical
personnel. In fact, the examiner who performed the 1993
spine examination found no pain on motion. The recent
examination and treatment records, dated to 1997, show the
low back condition is manifested by no more than
characteristic pain on motion. Therefore, more than the
current 10 percent evaluation is not warranted under Code
5295.
The disability might also be rated under the criteria for
limitation of motion of the lumbar spine. Under 38 C.F.R.
§ 4.71a, Code 5292, limitation of motion of the lumbar spine
is rated 10 percent when slight, and 20 percent rating when
moderate in degree. It is clear from the clinical findings
that the veteran does not have more than slight limitation of
motion of the lumbar spine. Forward flexion was performed to
45 degrees during the 1993 VA examination, however, it was
indicated that the veteran chose not to flex further and the
examiner found no pain on motion. The other recent medical
evidence, dated to 1997, shows no more than slight limitation
of low back motion, and such may only be rated 10 percent
under Code 5292. The Board notes that the veteran does not
demonstrate additional range of motion loss due to pain on
use or during flare-ups as noted by a medical examiner.
DeLuca v. Brown, 8 Vet.App. 202 (1995). There is no medical
evidence showing that the veteran experiences periods of
flare-ups where his range of motion is worse due to pain.
Therefore, additional disability on that basis is not shown.
The preponderance of the evidence is against the claim for an
increase in a 10 percent rating for low back strain. Thus,
the benefit-of-the-doubt rule does not apply, and the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet.App. 49 (1990).
2. Hiatal Hernia
The veteran's hiatal hernia is currently rated as 30 percent
disabling under 38 C.F.R. § 4.114, Code 7346. Code 7346 for
hiatal hernia provides for a 30 percent rating when there is
persistently recurrent epigastric distress with dysphagia,
pyrosis, and regurgitation, accompanied by substernal or arm
or shoulder pain, productive of considerable impairment of
health. A 60 percent rating is warranted if the disorder is
manifested by pain, vomiting, material weight loss and
hematemesis or melena with moderate anemia, or other symptom
combinations productive of severe impairment of health.
The recent evidence of record ( the January 1997 VA
examination and the February 1997 esophageal and stomach
biopsies) indicates that the veteran has daily chest pain,
reflux, and vomiting due to his hiatal hernia. The veteran
does not currently have any weight loss, hematemesis or
melena. Anemia had been previously diagnosed but the
examination who performed the January 1997 examination noted
that the veteran did not have anemia. In any event,
considering the benefit-of-the-doubt rule, the Board finds
that these symptoms more nearly approximate a combination of
symptoms productive of severe impairment of health, as
required for an increased rating to 60 percent. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. §§ 4.7, 4.114, Code 7346.
Therefore, an increased, 60 percent, rating is warranted for
hiatal hernia.
C. Earlier Effective Date for an Increased Evaluation for
Hiatal Hernia
The law provides that the effective date for an increase in
compensation shall be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred, providing the claim was received within one year
from such date. Otherwise, the effective date for an
increased rating will be the date of receipt of claim or date
entitlement arose, whichever is later. 38 U.S.C.A.
5110(a),(b)(2); 38 C.F.R. 3.400(o).
The veteran requested service connection for a hiatal hernia
in April 1990. A September 1990 rating decision granted
service connection for the condition, and assigned a
noncompensable rating. In October 1990 the veteran requested
an increased rating for his hiatal hernia. A February 1991
RO decision granted a 10 percent rating effective April 1990.
An April 1991 RO decision denied an increased rating for a
hiatal hernia. The Board remanded this issue for further
development in February 1993. The RO denied an increased
rating in October 1993. The RO granted an increased, 30 per
cent, rating effective January 10, 1997, based on the
findings contained in the January 1997 VA examination report.
The Board, in this decision, granted an increased, 60 per
cent rating based on those findings, and the findings
contained in the February 1997 biopsies.
The Board notes the findings of the May 1993 VA examination
which indicated that there had been no recent vomiting or
other known gastric motility impairment; and that the
veteran's last significant vomiting had occurred two years
previously. In November and December 1993 the veteran
complained of burning in his stomach, frequent vomiting
(three or four times per day) and occasional black stools.
In October 1996 considerable gastric reflux was noted on a
water siphonage test. In January 1997 a VA examination
reported considerable gastroesophageal reflux which was
resistant to medication, and chest and shoulder pain either
due to hiatal hernia or his cervical and shoulder conditions.
The Board finds that the first evidence of record that the
veteran's hiatal hernia warranted a rating higher than 10
percent is contained in the January 10, 1997 VA examination
report. Although the claim for an increased rating was filed
well before then, the effective date for a rating higher than
10 percent may be no earlier than January 10, 1997, as that
is the date entitlement arose (i.e., the date on which it is
ascertainable that the condition increased to a level above
10 percent). Thus, entitlement to an effective date earlier
than January 10, 1997, for an increased rating for hiatal
hernia, is denied. 38 U.S.C.A. 5110(a),(b)(2);
38 C.F.R. 3.400(o).
ORDER
Service connection is denied for essential hypertension, a
disorder manifested by swelling of the feet and a skin
disorder of the feet, bilateral carpal tunnel syndrome,
arthritis/bone disease, diabetes, and conjunctivitis.
Secondary service connection is denied for a cervical spine
condition, loss of use of a creative organ, and constant
vomiting.
An increased rating for low back strain is denied.
An increased rating, to 60 percent, for hiatal hernia is
granted.
An effective date earlier than January 10, 1997, for an
increased rating for hiatal hernia, is denied.
REMAND
If the Board's initial consideration of a matter or question
not adjudicated by the RO might be prejudicial to the
appellant, the case must be remanded to the RO for initial
consideration. Bernard v. Brown, 4 Vet.App. 384 (1995). The
RO has not had the opportunity to consider the veteran's
claim for a total rating for compensation purposes based on
individual unemployability taking into account his 60 percent
rating for his service-connected hiatal hernia awarded in
this decision.
Under the circumstances, this issue is REMANDED for the
following action:
The RO should readjudicate the claim for
a total rating based on unemployability,
in light of the Board's grant of an
increased rating for hiatal hernia. If
the action taken is adverse to the
veteran, he and his representative should
be furnished a supplemental statement of
the case and afforded the opportunity to
respond, and then the case should be
returned to the Board.
L. W. TOBIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board's decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).